Alaska Employment Law

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This is the third discussion arising from the November 5th meeting of the Alaska Employment Law Section, addressing employment issues related to the Troopergate investigation.  Earlier posts addressed name-clearing (11/06) and at-will (11/07) issues.  This one addresses the construction of the Ethics Act, found at AS 39.52.

Tim Petumenos (Independent Counsel for the State of Alaska Personnel Board) and Stephen Branchflower (private counsel for the Alaska Legislative Council) differed not only on the facts (Did Governor Palin improperly try to pressure Commissioner Monegan to fire Trooper Wooten?). They also differed on two central readings of the Alaska Ethics Act.

Substantive provisions of the Ethics Act: Branchflower found that Palin violated the Act, and pointed to AS 39.52.110 (“Scope of the Act”) as the operative substantive statute. Branchflower Report at pp. 48-52. Petumenos, on the other hand, cleared Palin of wrongdoing, but looked to the later provisions in the Act - AS 39.52.120-180 - for the standards against which to measure Palin’s conduct, relying principally on AS 39.52.120 (“Misuse of official position”). Petumenos Report at pp. 23-29; 56. Petumenos said that Branchflower’s reliance on § 110 “ignores basic statutory construction.” Id. at p. 23.

At the Employment Law Section meeting, Petumenos stressed his view that the Scope of the Act (§ 110) provided only the broad legislative purpose for the substantive provisions found elsewhere in the Act, and was an interpretive aid rather than a collection of substantive criteria.

“Benefit” and “personal interest”:  The two attorneys also differed on the nature of the “personal interest” that the Act (AS 39.52.120(b)(4)) bars executive officers from seeking to “benefit.” Branchflower concluded:

The term “benefit” is very broadly defined, and includes anything that is to the person’s advantage or personal self-interest. The term “personal interest” as used in the Ethics Act means any interest held by the public officer or the public officer’s immediate family, including a sibling such as Governor Palin’s sister Molly, Molly’s children, her father Mr. Heath or any other family member.

Branchflower Report at p. 65; see also pp. 48-52.

Petumenos, on the other hand, concluded:

The only way the Ethics Act can be violated here, as these facts present themselves, is if it can be construed to apply to an attempt to use public authority to attempt to terminate a state employee by taking unwarranted official acts to further a personal, though non-financial agenda pertaining to oneself or a family member. . . . Because the evidence adduced here does not support even this extended interpretation, the answer to the Governor’s Notice and the resolution of the PSEA amended complaint [] does not depend upon a resolution of this issue of statutory interpretation.

Petumenos Report at p. 18.

Ethics Act as an employment statute: At the ELS meeting, Petumenos stated that “the Ethics Act is not an employment statute.” His report (at p. 16), similarly, states: “The substantive proscriptions and requirements of the Ethics Act focus on financial matters.”

Petumenos may have meant something like “not primarily a traditional employment statute.” AS 39.52.410, which lays out the “penalties for misconduct” under the Ethics Act, doesn’t expressly provide a reinstatement remedy for an employee who was the victim of an Ethics Act violation, as do traditional employment statutes like Title VII and the state Whistleblower Act. But the Ethics Act does provide some employment-related remedies against the violator. AS 39.52.410(a) provides: “If the personnel board determines that a public employee has violated this chapter, it . . . (3) may recommend that the employee’s agency take disciplinary action, including dismissal.” As to the subset of elected officials, AS 39.52.410 also provides: “If the personnel board finds a violation of this chapter by a public officer removable from office only by impeachment, it shall file a report with the president of the Senate, with its finding.”

At the ELS meeting, Petumenos pointed out that executive branch employees are also subject to criminal penalties (e.g., AS 11.56.510 – Interference with official proceedings; AS 11.56.950 – Official misconduct) and to impeachment (Alaska Constitution, Art. 2, § 20), with definitions of misconduct possibly broader than those in the Ethics Act.

In his Report, Petumenos noted that “The grievance procedure that resulted in Trooper Wooten’s five day suspension qualifies under the law as an ‘official proceeding,’” citing AS 11.81.900(41). Petumenos Report at p. 21.

Privileges under the Ethics Act: Petumenos told the ELS members that he took the position during the investigation that Palin retained no privilege to withhold documents (or presumably testimonial information) from the Attorney General. Because the Independent Counsel is the stand-in for the Attorney General when the Ethics Act respondent is the Governor, Lt. Governor, or Attorney General (see AS 39.52.210), Petumenos claimed the same authority. According to both Petumenos and Thomas Van Flein (Palin’s personal counsel), Palin accepted that argument, at least for purposes of the investigatory portion of Petumenos’ work, and provided Petumenos with privileged documents.

Other: At the ELS meeting, Petumenos defended Palin’s tactic of moving to dismiss the investigation resulting from her own filing with the Personnel Board. He argued that AS 39.52.210 calls for executive branch employees to present the Board with notice of their possible violations of the Act - in essence, he said, the Act authorizes or maybe even compels such employees to “self-report.” If that is the case, their actions in compliance with the statute should not bar them from defending themselves, including moving to dismiss, Petumenos said.

Petumenos Report

Branchflower Report